tv Tavis Smiley PBS July 8, 2014 11:30pm-12:01am EDT
>> good evening from los angeles. i'm tavis smiley. an assessment of the roberts court. a series of contentious decisions with long lasting consequences for the direction of our nation. from curtailment of voting rights act to hobby lobby decision which impacts affordable care act. we'll talk with university of california berkeley law professor, melissa murray, an expert in constitutional law and clerked for supreme court justice sonia sotomayor at the court of appeals. and jason biggs co-starring in a critically acclaimed tv series, "orange is the new black" on net flicks. join us for those conversations coming up right now.
many are insisting it's what we are getting decisions, voting rights. corporations, citizens, and restrictions on affordable care act, decisions that are dividing the country. joining me u.c. berkeley law professor, melissa murray, expert in constitutional law and former clerk for sonia sotomayor on u.s. court of appeals 2nd circuit. good to have you on the program. >> thank you for having me. >> let me ask you what your read of the court is, chief justice nine terms. didn't want an activist court. many think that's what we are getting. what is your read? >> one thing john roberts mentionedappointed. he wanted the court above the fray of politics. he wanted to use the position of chief justice to herd the court towards decisions that weren't quite as polarized. didn't look as divisive. i think you are seeing that especially in this term. as you know a number of the
decisions that have come out in the last term have been unanimous decisions. and it look for all intents and purposes like court has found common ground on some very important issues. but i think that that unanimity is really illusory and decisions are narrowly decided that unanimity is fragile and underneath that unanimity are tensions that are roiling through the court. more divided than it looks. chief justice roberts has done a good job of making it look like there is consensus. >> let me split those in two parts. up at a time. talk about unanimity. easy for me to say. talk about that first. this term, if facts are right, 65% of the cases were unanimous. which again is not the narrative that we get when we hear this court being discussed with the divided 5-4 decisions. how is it that could have been unanimous on 65% of the cases? >> so, they're deciding things on very narrow grounds. so for example, one case that really drew a lot of attention
was the buffer zen caone case f texas. mccullin. and deals with buffer zones around abortion clinics. and protesters, or women who want to counsel women about seeking abortions about other options can penetrate the buffer zone in order to do that. the decision was unanimous. right? on a narrow question of whether or not the buffer zone was unconstitutional. the court would wind up and say it was. but there are a number of, in this unanimous decision, you have some members of the court saying buffer zones of any size would be unconstitutional. and other members of the court saying that just smaller buffer zones would be fine. so, there is a real disagreement on the court about this basic question of how far these protesters can get from the abortion clinic, how close they can get to the individual seeking abortions, so unanimoth unanimity masks tension. >> i would look to assume that
any case heard by my supreme court is an important case for somebody in the country. on the issue that really matters. the hot button issues that we are all paying attention to, that's when the 5-4 splits continue to happen. >> very big decisions. even the unanimous case, are some big, big decisions. the abortion buffer zone case, big decision. narrowly decided to sort of avoid the bigger questions. but you're exactly right that on the real questions, the hot button issues that divide americans, the court reflects that division. >> it reflects the division. and i -- i'm not naive about this. neath are you. you are a professor. you know how this works. i know they're appointed by, for all of the drama of the supreme, the hearings in the senate, we kind of know what we are going to get. depending on who they're appointed by. and yet, what is troubling for me is -- the degree to which -- the country doesn't trust the supreme court anymore. i mean, whether one is left or right. republican, democart, your heart has to -- if not ache certainly
be concerned about what happens to a democracy. when the people don't trust the supreme court system. now, 30% of us. that is like a really low number. >> so, i think there is a general malaise in the country. so there has been a true dip in the credibility that all of the branches of government, have experienced. so the president is at an all-time low. this president. congress is all way the laggard in all of this. the court is often enjoyed more credibility among the public than the other two, the other two coordinate branches. yes, i think we are seeing a point in time where -- the court does look like it is a bit enmeshed in politics. i don't think this is endemic to this particular court. i think you have seen skepticism on the part of the public as far as 2000, bush v gore. simply on the issues. where the country is very much divided. you are also seeing divisions on the court. part of that is again as you suggest. we aren't seeing sort of
surprise justices that we used to see. david souter was a surprise when nominated by george h.w. bush. he thought he wagh getting a ne hampshire conservative. he got some one far more moderate and trended liberal on important issues. you don't see that kind of surprise anymore. >> as a professor of law, are you in any way fretting what that may, i don't want to overstate it. i don't think this is hyperbolic at all. a very serious conversation about what it says about our democracy. and the strength and the future of that democracy when the highest court in the land is not believed. people trust pbs. read the pew data. people trust pbs more than the supreme court. i'm happy about that, they trust us. but the supreme court. that's scary to me. when, i used to question it. if you can't believe in a court system, that is supposed to adjudicate. then, what are we turning to? to your early point. legislative branch. they're out there. the one institution we expect
above all that. >> well, the court recognizes that, it is legitimacy as an institution depend on the public really being invested in it and being credible to the public. and i think that's one of the reasons why you see chief justice roberts showing this kind of leadership trying to get consensus on these decisions. even if it is fragile. narrow. wanting to make it look as though the court isn't engaged in partisan politics. >> even. so, roberts may care about that. i hear your point about what he is trying to do. you think scalia and thomas care? >> scalia and temperature mahom offering a different vision. >> i know that. we know they have a different vision can sotomayor, and ginsburg. the question is do you think they care. in their, in their down time, private time. when they're with each other. that they really are given off to conversation about how their decisions are being viewed by the country and how the country doesn't trust or believe in
them. >> i do think they care. you see justice scalia, this term. some of the unanimous decisions. he has filed concurrences that really feel more like defense. he is speaking to a group of americans. a group of constituents. about the loss of credibility of the court. like he talked on the abortion cases, that this court has sort of gone off on an exceptional brand of abortion, first amendment, jurisprudence. really specific to abortion. and he is speaking to them. speaking to the concerns that they have. it's just that he is on a different wing of the court from some of the other members who are speaking to completely different constituencies. they're both speaking to, two different groups of people. and in doing that, they're really reflecting how driven be are over these hot button social issues. >> wonderful institution, just last weekend, couple days ago. giving a major presentation. i was joined there by -- former supreme court justice sandra day
o'connor, spoke after i spoke. had a chance to see her over the weekend. preparing for our conversation was thinking about the fact that she, had to put in "saved affirmative action" at least for the moment with her. her decision on the court. lead me to ask what you think of the policies of the court in the next term or few years? >> if there is a really big affirmative action case that the court took on and squarely addressed whether race conscious admissions offended the constitution in gruder vs. bollinger. justice o'connor, and gruder, upheld, the use of admissions in the university of michigan law school program. two other cases, fisher, university, last term. university of texas case. and this term, sweedy. kick the can down the road. fisher sent back to the 5th circuit.
the court below hadn't applied the right standard or review, or rigoro rigorously. >> of the decision wasn't. the issue on the, for the score the wasn't really about whether or not affirmative action was constitutional. rather whether or not the people of michigan through their ballot initiative could decide the question. the can is kicked down the road. we well have a case. the thing with the court you. see the seed being planted in earlier cases. and it is sort of like a guam of chess. like you are getting your pieces in possession. in three or four moves down the line you will checkmate. >> you are cosmopolitan and generous than i am. they're waiting for the right case. >> exactly right. they're sort of laying. laying the seeds and cultivating something in the future. shelby county last term, really, really interesting decision. really, really difficult decision for a lot of people who believe very strongly of the
voting rights act is necessary in certain parts of the country to ensure enfranchisement of racial minorities. the seeds of that decision were actual actually sown in 2009. smaller case, northwest austin mu thn municipal district. the court decided, by doing so. laid the foundation for dismantling the preclearance conditions. >> two questions. what are we learning from the roberts court overreading narrow decisions? >> so, justice alo, and hobby lobby was at great pains to emphasize how narrow that decision was. only about the four forms of contraception. only about the closely held corporations. and that's true. this is a court that is playing a long game. we have to be cognizant of that. yes, hobby lobby is narrowly decided. the logic and reasoning of hobby lobby has legs.
it will have legs that go far beyond the four forms of contraception objected to. beyond the corporations. this is a logic that will have legs in the future. >> happen to be, an african-american woman. what you make of the fact that you are in a historical moment, celebrating, 50 years of so many pieces of legislation. here we are 50 years later with all of the major seminole moments in the court being celebrated. we don't have the most multicultural, multiracial, court we have ever had. for those more progressive, the decisions we are getting out of this court pale in comparison to a court of nine white males. fascinating to me. nine white males advanced the country. we have a court diverse and decisions out of this court are
retrograde, retro-aggressive, i mean, tell me what your thoughts are? >> we are far past the era -- we think of the warren court of being this progressive moment. but the warren court was quite conservative at a certain point. >> very much. >> i think this court has been progressive. riley from this term. >> they all have cell phones. >> there is a degree of empathy in the cell phone case. everybody could understand what a violation it would be to have your cell phone. >> the empathy exists when it comes to something that they, not naive again. i think the empathy because they have a cell phone. where is the empathy on other issues. >> i think justice sotomayor. the michigan affirmative action case is telling. justice sotomayor has a completely different background from some of the other members of the court. and for her, the questions of race really are thing that we need to talk about that we fwne
to talk about. in contrast. chief justice roberts chides her. we should stop talking about race so much. her response is that we have to talk about this. of course, let's talk about this. this is something that is everywheren our ein our societ. we have to talk about it. the reason you have different decisions 50 years ago. we were in a time we could talk, there was debate. exchange of ideas on the court and country. now i think we are sort of entrenched in our positions and not a lot of cross fertilization. you are seeing it on the court. >> interesting irony. with an african-american president, not his issues, not his fault. an irony, all thing prorehas been made. when decisions are concerned. we seem to be going backward. i digress. thank you for joining us. >> thak fnk you for having me. >> coming up a conversation with jason biggs from "orange is the new black." stay with us.
jason biggs made an indelible mark with "american pie" movie series and skoe starring in "orange is the new black" series in a women's prison based on a real life memoir. and "orange is the new black" was named best television series, and considered a front-runner for upcoming emmy nomination announced as you know next week. show now in its second season. available for binge viewing on netflix. start with a scene from "orange is the new black." >> i have to get out of here. i want to come home. >> quite the statement. >> are you sure about that? >> yeah.
i'm sure. >> i'm not asking you. i'm asking future piper. free piper. can you guarantee that you still will? >> future piper hopes so. present larry can't live on hope. with peas and peanut butter pretzels, yes, but not with hope. >> good these days in biggs house hole. the husband on t-- on a hit tv series. and i like you just the way i am. >> stories about me and some other people. >> the best-seller list. you on a hit series. life is good. >> yeah, we have a new baby. >> a new baby. forgot the baby. >> he has got a new show coming out. he is on the best-seller list. yeah. yeah. i mean. >> what have you done to deserve
all this good fortune? >> you know -- i don't know. that is a really good question. i don't really know. i think, i think i've, you haves at some point. >> it is amazing about this business, not just the business but life period. life ebbs and flows obviously. >> yeah. >> when you find yourself in one of the moments where everything is clicking on all cylinders an everything is working so well, how do you process that? >> yeah, it's a really good question. because the it's -- i was actually just talking with jenny. we have been having this sort of conversation a lot lately. but we were just having it this morning about -- stuff being aware and taking, these moments. >> whether by yourself or she and i together and just, really being able to acknowledge and
appreciate what's happening. for jenny especially. this is, she has been working really hard for a really lopping tilopping -- really long time. she is an actress first. as an actress she never got her big break in the way i did certainly as an actor. this for all intents and purposes, this is her big break. this is her "american pie." i see a lot of similarities for her now that sort of kind of overnight, ascent and recognition. and a similarity to what happened to me with the first "american pies" 15 years ago. so i can be kind of objective. kind of. you know it's hard. because i am married to her. and i mean i'm so close to it obviously. but there are these moments where we just have, i just have off to tell her, you know, like just stop. appreciate this now. you know because she is already, we, we, have this crazy thing where -- you know she is already
look, okay, well -- the book is doing well. i'm like, baby you are on "the new york times" best-seller list. she gets the, the weight of that. unerstands it and she is -- she thinks she knows it is incredible. but then she goes to a place where it is like, okay, while i'm on the list, i need to -- now i can sell the second one. so now she is already like what's the second one. now stress add but that. it is look you are always. i'm look that's good. that ambition andthat, and that sort of practical sense of, you know, like, business. how this business works. but you really got to stop yourself some times and be like, okay. this is awesome right now. >> i would think though, that -- that the presence of this, this baby has helped -- sent us us. >> contextualize everything. >> it does. >> yeah, in a very, very real way. it definitely does.
admittedly we still need reminding. we still need to remind each other. you know what? it's -- it's, this is amazing. and appreciate it. you don't know what will happen in a week. a year. with your second book. third season. next show. you just don't know. and -- >> we do know it is a hit now. >> yes, it is a hit now. we believe this. don't know the emmy nominators could be generous to al of you in a few days. to your mind what its it about the show that has so struck a chord. it is resonating. >> i think, gosh a lot of things. i think part of what makes it so interesting is -- you have -- a world. that is very unique. unlook any world on television certainly. a world of women's prison. you take the characters that on paper would seem to be --
you know, not, not -- necessarily the most likable of characters. they are prisoners. they have done something wrong to be in the situations that they're in. you know, before anyone has watched this show. i think it is safe to say for the most part. there is a stigma associated with prisoners. you know? so it is hard to relate certainly. what has been so incredibly captivating for me. i watch the prison scenes and characters. and the diversity of the cast. the amazingly, beautiful, diverse, women characters we have in there. part of it is you find yourself relating to these people, these women that you never thought you were going to relate to. and they're, you know, they're humanized in a very engroegs ss
and you know,eally incredible way. like, and those flashbacks, that device that is used. where we go back and the character before they got to prison. it really is a stroke of genius. you find yourself really invested in the character stories. >> what do you make of -- the way that, netflix and binge viewing has changed the way we do tv. >> it's genius. genius. that's part of it too. the netflix model is -- is brilliant for a couple reasons. one it gives the viewer control. it, it is empowering. it's -- it's -- freeing. it's lb ratie lib rating. we want to be. make our own decisions as viewers. but also -- it's -- it feels, because you can watch it in its whole. it feels more like a 13-hour movie. more epic in scale. and that, that affects the way we filling it as well. so the character development is different. and more organic.
and paced out. everything about the way we shoot it is different. about the way it is written. and -- and, you know it just, it makes for, and i just think the timing was right too. that's part of it. the show is good. the netflix model is good. a perfect combo at this time. that's what people want. >> timing is everything. >> timing is everything. >> 30 second. give me your best tease for why we should dune in to see what happens to your character? >> what giving it away. >> tease it up. >> my character. you know. i am biased. i happen to sympathize with larry and his sort of dilemma his situation. i feel look he is, having a hard time being on the outside. and he's, he's struggling. he makes some decisions like he did in season one. that will continue to affect the relationship with piper in a very dramatic way. i wouldn't say for better or worse. but -- but, but, definitely, will affect it. >> very nicely done. you absolutely said nothing. thank you.
>> good. >> we believe it. we are like netflix robots. so trained. we would getten so much trouble. >> they trained you well. you teed it up. teased it up. and said nothing. means we will all tune in to knel netflix, and tune in. jason biggs, suspect in a few days get some good emmy nominations. our special for tonight. thank you for watching. ♪ ♪ >> for more information on today's show, visit tavis smiley, at pbs.org. hi, i'm tavis smiley. join me for a conversation about ethics and politics. that's next time. and we'll see you then.
>> rose: welcome to the program. >> i am kurt andersen, filling in for charlie rose who is on assignment. we begin this evening with a conversation about the middle east. i am joined at the table by jeffrey goldberg, national correspondent for the atlantic magazine. >> in is the thing about all middle east conflict, maybe all conflicts in general. is that, you know, once it goes can kinetic to borrow the pentan shorthand, once it goes lives and people are firing at each other, all plans go out the window. >> we continue with author chuck klosterman who talks about his latest book, "i wear the black hat, grappling with villains." >> as i was writing the essays and trying to see what is the unifying thing i am finding interesting about this and it seemed to be this. it seems that very often the person who is the villain is the person who knows the most and cares the least. >> jeffrey goldberg and chuck kl